Saying No to the Death Penalty Does Not Equal Saying Yes to Abortion

Some of the comments I’ve been seeing around the web relating to the post made here on abolishing the death penalty, or other news stories relating to the death penalty, seem to insinuate that calling for an end to the death penalty ignores the fact that abortion is also present in our culture. And, these comments insinuate, abortion always kills the innocent. The argument appears to be a game of numbers: A few (questionable, in the minds of many) innocents, compared to a lot of innocents necessarily means a stronger focus on the greater number of innocents.

Why, therefore, aren’t theologians also rising up in numbers to protest abortion in a similar way?

Except that there are plenty of chinks in that story to suggest it doesn’t work that way. Cardinal DiNardo has, many times, opposed the death penalty. Bishops protested the death penalty in Davis’s case (as did the Vatican). And, there are plenty of theologians, including many of those who signed the statement, who are on record as being against abortion, too. We, at this blog, have written several times about abortion.

We could play another kind of numbers game with this (though of course, this, too, is a zero sum game, and I’ll bring this up again at the end of this post): 66% of American Catholics support the death penalty; but about the same number (60%) oppose abortion. This means a majority of American Catholics are in line with the teachings of their magisterial authorities when it comes to abortion, but not the death penalty.

Many will argue, of course, that this discrepancy is because abortion is clearly a more authoritative issue because it has a long history of opposition by the church, while the death penalty statements made by the bishops date only back the 1980s.

Yet on matters like the death penalty, the Vatican document on the Ecclesial Vocation of the Theologian says concerning the Magisterium:

When it comes to the question of interventions in the prudential order, it could happen that some Magisterial documents might not be free from all deficiencies. Bishops and their advisors have not always taken into immediate consideration every aspect or the entire complexity of a question. But it would be contrary to the truth, if, proceeding from some particular cases, one were to conclude that the Church’s Magisterium can be habitually mistaken in its prudential judgments, or that it does not enjoy divine assistance in the integral exercise of its mission.

[Emphasis mine]

A prudential judgement would be about a bishop’s particular thought about a particular case; it would not be correct, however, to presume that the bishops are always and everywhere right about abortion but wrong about the death penalty.

I happen to think that these days, many more people than just the “professional theologians” have taken on for themselves the task of doing theology, as they see fit. Lay people do their own theology, too. It is part of our voluntaristic religious culture. But if lay American Catholics seek to “do theology” then I think they also need to remember, again from the Vocation of the Theologian:

Although theological faith as such then cannot err, the believer can still have erroneous opinions since all his thoughts do not spring from faith.(32) Not all the ideas which circulate among the People of God are compatible with the faith. This is all the more so given that people can be swayed by a public opinion influenced by modern communications media.

Humility suggests that we be responsible to and for each other, by paying particular attention to the people whose specific role in the church is aimed at “preserving, explaining, and spreading the Word of God.”

Which issue, then, needs more support from academic theologians? The one where most Catholics agree with their bishops? Or the one where they don’t?

As I mentioned above, this is, of course, playing a numbers game on issues of life, which is a zero sum game. Just as in the parable of the lost sheep, Jesus cares so much about the one that is lost that he leaves the 99 to find the 1, so we, as Catholics, are called to advocate for life – ALL life – exactly in order that all people may be invited to share in the life and love of God. To phrase the issues in such a way that suggests one is pitted against the other is to kowtow to non-Christian ideologies.

I want to close this post by highlighting an excellent blog post by Mark Shea, who writes at National Catholic Register and Crisis Magazine (though these comments come from his own blog). Shea, too, raises questions about the ways we American Catholics think about pro-life issues and suggests that on these matters, there is danger of becoming idolatrous. Shea observes:

The devil has lots of ways to tempt us to idolatry, of course. One of them, paradoxically, is to get us to crack up and go sappy about the sheer adorable goodness of the Idol. In short, Satan *loves* Love, so long as it’s disordered love…. Even adorable innocent babies? Yes. Especially adorable innocent babies if that happens to be your weak spot and the place you can be tempted to place the creature before the Creator.

And, Shea mentions ways to mitigate the kind of idolatry he worries about here:

As a bought and paid for Professional Catholic[TM] who, I am informed, hates the Faith, babies, America, apple pie and motherhood, I naturally revel in subverting the True Catholic Faith by such sinister means as
a) trusting the Magisterium;
b) urging docility to the Church even on things that do not pertain to abortion and are not infallibly defined….
d) opposing abortion, but not worshiping the prolife movement more than Jesus Christ;
e) not subscribing to the theory that opposition to abortion taketh away the sins of the world and constitutes the sole social concern of all Real Catholics[TM]….

To these I would add my own f): believing that my fellow theologians, my bishops, and my brothers and sisters in Christ are all attempting to stumble toward God.

About The Author

Jana Bennett is Associate Professor of Theological Ethics at the University of Dayton. Like everyone else contributing to this blog, she is concerned about the polarities she sees in contemporary Catholicism among academics and lay people alike. Jana Bennett has a BA from The Colorado College, an MDiv from Garrett-Evangelical Seminary and a PhD from Duke University. Her interests include Augustine, singleness, disability, and technology use. She came into full communion with the Roman Catholic Church in 2003, after having grown up United Methodist. She is married with two kids.

13 Comments

TumnusEthic
on September 30, 2011 at 1:09 pm

Great reflection, Jana! I appreciate in particular your reminder about idolatry. I think moral theologians have a special responsibility to watch for this danger, and the nature of polarized public discourse is such that we need to put that responsibility into action! Thanks.

“Yet on matters like the death penalty, the Vatican document on the Ecclesial Vocation of the Theologian says concerning the Magisterium:

When it comes to the question of interventions in the prudential order…”

I believe, as apparently you do also, that the Catechism section on capital punishment is prudential. Understanding that point changes the entire nature of the discussion as the use of capital punishment should not be seen as moral vs immoral but as helpful vs harmful. It is one thing to argue that it shouldn’t be used because it does more harm than good, and quite another to argue that it is somehow less moral than the alternatives.

This is one of the best posts on this topic that I have ever seen and the points about idolatry are well made; I often read Shea but had missed the link. Thank you for your articulate representation of so many things, you Jana and all of you here on this fine blog.

Ender: I’m not sure you can (or would want to) shift the ground from “moral/immoral” to “helpful/harmful.” For one thing, the latter distinction is already a matter of moral discernment, and so it is not clear that a distinction can be made along those lines.

What do you make of the last portion of that quote that “But it would be contrary to the truth, if, proceeding from some particular cases, one were to conclude that the Church’s Magisterium can be habitually mistaken in its prudential judgments.”

If contrary to truth always to deem the magisterium wrong on its stance on the death penalty, then that, too, is a moral issue. That is to say: you cannot categorically say the bishops are wrong on the death penalty, either by 1) simply denying the bishops the right to make any kind of judgement at all; or 2) always alleging that every single specific case they see as problematic is a matter of prudential judgement that they don’t fully understand.

I contend that a disagreement over what actions are harmful/helpful is not a moral issue. If I think an action will help while you think it will hurt, one of us is surely wrong but neither of us acts immorally.

Regarding the warning not to believe the Magisterium is habitually wrong in its prudential judgment, believing that it is mistaken regarding its position on capital punishment is hardly contending that it is habitually wrong.

Cardinal Dulles believed that the Catechism section on capital punishment (2267) was prudential opinion. I agree with that. He also believed that their position was accurate, that capital punishment did more harm than good. I’m not at all convinced of that but the point is, that is not a moral objection to the use of the death penalty and it is incorrect to claim the Church opposes its use on moral grounds.

Ender: Interesting – I’m especially curious in the way you want to make a division: “moral/immoral questions” = intrinsic evil, and everything else = “not a moral issue” but rather “helpful or harmful”. It’s very difficult to separate what is a matter of being helpful and harmful from what is “moral,” especially since the church’s tradition discusses all sorts of intrinsic and non-intrinsic evils in relation to help and harm, both. Abortion immediately comes to mind.

And also , a utilitarian calculus of decreasing harm and increasing pleasure is still a moral system – but, I think, not one that the church sees as the best way of thinking through human action. Indeed, the Compendium of Social Doctrine of the church explicitly speaks against utilitarianism.

I think there are several points you raise here that deserve another blog post and lengthier conversation, particularly the nature of prudential judgement. If one of my colleagues doesn’t get to a fuller discussion of prudential judgement this week, look for something either late this week or early next week. Thanks.

Thank you for continuing the debate but I must point out I said nothing about intrinsic evils and especially that if something wasn’t intrinsically evil it wasn’t a moral issue. There are infallible teachings, ordinary teachings, and prudential opinions and while we are obligated to assent to the first two we have no such obligation with regard to the last.

If you think raising the minimum wage is a good idea and I think it is a bad one we are on morally equivalent ground since it isn’t a moral question but an economic one. I understand prudential teachings to be the application of moral guidelines to practical issues but I am very leery of bishops when they wander too far from guidelines and start supporting specific solutions.

Nonetheless, regarding capital punishment, I believe one is mistaken to hold that the Church doctrinally (infallible or ordinary) opposes its use.

Ender’s distinctions between categories seem to me to miss the point. If one reads Pope John Paul’s Evangelium Vitae, paragraphs 55-56, one can see that he is moving capital punishment in line with the traditional teaching on self-defense. He states bluntly: “This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God’s plan for man and society.” By claiming that abolition of the death penalty is a matter of bringing penal justice “ever more in line with human dignity,” the pope clearly marks the abolition of the death penalty as desirable in itself. This is not always possible, due to social conditions, but he evidently teaches that it is desirable.

This is not a teaching comparable to a policy debate, such as the minimum wage. The minimum wage is a practical (and perhaps faulty) policy device for trying to insure a just wage. The notion of the just wage is surely a bedrock teaching that has been taught in every modern pope’s social encyclicals. How to achieve the just wage, or its approximation, in any society, is a matter of prudential judgment… and thus, the encyclicals remain silent on how to do this (other than calling for unions and government framing of the market). There is no possibility of quoting an encyclical where the popes weigh in on minimum wage laws.

The fact that the encyclical is NOT silent on capital punishment should indicate that what the pope is doing here is not a matter of “opinion.” He is indicating that while the state may, tragically, have to take life, such a taking is not ultimately in line with human dignity the way that imprisonment is. I really cannot see how else to read these paragraphs of EV.

It is not possible to defend capital punishment on the basis of self-defense.

2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. “The act of self-defense can have a double effect: the preservation of one’s own life; and the killing of the aggressor…. the one is intended, the other is not.”

They key to killing in self defense is that the death of the aggressor not be intended, that it be incidental to the primary objective which is the preservation of one’s own life. In an execution, however, the death of the criminal is very much intended and is the entire objective of the act, and it therefore would not meet the criteria the Church defines.

Regarding the claim that capital punishment is an offense against man’s dignity, I will point out that defense is only a secondary objective of punishment; it is retributive justice that is primary. Since executions are allowed to achieve a secondary objective without apparent offense to the criminal’s dignity it surely cannot be an offense against that dignity when it is used to achieve the primary objective.

Ender– John Paul II clearly makes the analogy with self-defense, and by suggesting that imprisonment is “more in line with human dignity”, he repudiates the idea that killing can be a proper response of retributive justice. Both ideas are not mine. They are the pope’s, in his most authoritative statement on capital punishment.

The pope’s treatment of capital punishment in EV is also consist with Catechism #2263 – the pope refers to the necessity of capital punishment as “tragic,” and thus regrettable. The intention would be to protect the common good, and not to kill the criminal.

Again, please look at Evangelium Vitae. There is no other way to read that section of the document.

David – I am very familiar with what has been written on this subject so while I may be wrong I am surely not uninformed. Regarding the authoritativeness of this new position, Cardinal Dulles explicitly called it prudential, Cardinal Ratzinger wrote that Catholics could have a “legitimate diversity of opinion” on the application of capital punishment, and even the USCCB said they offered “neither judgment nor condemnation” to those who disagree. This offers very good evidence that 2267 is not doctrine.

Whether JPII made an analogy with self-defense or not doesn’t matter; the Church’s teaching on self-defense and the principle of double effect have not changed, and the principle of double effect requires that the good result not flow directly from the evil effect but quite clearly the safety that is sought comes directly from the death of the criminal. So, no, justifying capital punishment on the basis of self defense is not possible.

As to whether JPII repudiated “the idea that killing can be a proper response of retributive justice”, I am not alone in rejecting that explanation. The following comment is from Cardinal Dulles (2002):

If the Pope were to deny that the death penalty could be an exercise of retributive justice, he would be overthrowing the tradition of two millennia of Catholic thought, denying the teaching of several previous popes, and contradicting the teaching of Scripture (notably in Genesis 9:5-6 and Romans 13:1-4).

First, based upon self defense, which is a secular consideration of prison security, in the context of both EV and CCC, innocents are more protected by the execution of murderers than by imprisoning them, so it is odd that both EV and the CCC would chose a position which put innocents more at risk.

Putting a prudential judgement in the CCC appears to be a problem.

Secondly, and more importantly, I believe, is that principles for the death penalty, as well as all sanctions, is much more profound than “self defense”.

Self defense must be a secondary consideration, both for the religious, as well as for moral philosophers. Sanction must be based upon it being just and deserved, that it is reformative and corrective.

All sanctions offer self defense, but justice is the reason we impose it and self defense in an outocme of it.

Mr. Sharp and Ender – It seems we have come to an impasse. With all due respect to Cardinal Dulles, whose work I use often in class, his is a theological opinion that seems to me irreconciliable with both EV and CCC on this issue.

The difference here is I assume the Church has in fact adjusted its position on the question of the death penalty’s consistency with human dignity – not unlike its development on the issue of slavery. The Church can and does develop its teaching on such issues, and in this case, the statements indicate that it no longer sees death as appropriate on retributive justice grounds. It is contrary to human dignity, and so can only be acceptable as a regrettable side-effect of self-defense.

I think Ender is onto something when noting that this may be problematic, insofar as it does appear the death is the means to societal defense. But again, I didn’t make the analogy the centerpiece of my case against capital punishment. Pope John Paul did.

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